W T E D STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IUDICIAL C O W C I L
In the Maner of thc Review of thc
Amendment to the Plan of i h e United
Stales Dishict Court for the Eastern Districl No.165
ofNorth Carolina in Implcrnentation of .
the Criminal Justice Act
ORDER
The Plan of the United States District Court ror'the Eastern Disbict ofNortb
Carolina, as amended, which is attached lo and made a pm of this Order is hereby approved by
the Judicial Council of the Four& Circuit. and il is so ORDERED.
FOR THE COUNCIL:
FILED
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1u.s. COG* cf&?da
cum C!rcdl
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CRIXLVAL JUSTICE ACT PLAN
Pursuant IO the Criminal Justice Act of 1964, as amended, (CIA), section 3006A of titie 18,
United States Code, and the Guidelinesfor (he Adminis~orionof rhe Criminal .rustice Act a n d
Relared Statures (CJA Guidelines), Volume VII, Guide to Judiciary Policies and Procedures, the
judges of the Unitcd Stales District Courf for the Eastern Dislrict of N o h Carolinq adopt this
Plan for furnishing representation in federal court for any person hancially unable to obtain
adequate rcpresentation in accordance with the CIA.
IT. STdTEMENT OF POLICY
A. Obiectives.
1. The objective of !his Plan is to provide effective, quality, legal representation to all persons
endt!ed to counsel pursuant lo CIA Guidelines. Therefore, this Plan shall be administered so
that those accured o f a crime, or otherwise eligible for services pursuant t o ihe CIA, will hot be
deprived, because they are financially unable to pay for adcquate representation, or any element of
representation necessary lo an adequate defense.
2. The further objective of this Plan is to particularize the requirements of the CJA, the Anti-
Drug A b u e Act of 1988 (codified in part at section 848(aJ of title 21, United States Code), and
the CJA Guidelines in a way that meets the needs of this district.
B. Compliance.
I . The court, its clerk. the federal public defender organization, and private anorncys appointed
under !he CIA shall comply with the CJA Guidelinesapproved by the Judicial Conference of the
Vni~edStates andlor its Committee on Defender S e ~ c e and s with this Plan.
2. Each private anorney shall be provided by the federal public defender with a hen-current copy
of this Plan upon the attorney's fust appoinunent under the CIA or designation as a member ofthe
Panel ofPrivate Anomeys under the Criminal Justicc Act (CJA Panel). The FPD shall maintain a
current copy of the CIA Guidelines for the U K of members o f the CIA Panel and shall make
h o w to such attorneys its availability.
111. PEFINITIONS
A. "Representation" includes counsel and investigative, expen, and orher services.
B."Appointed anorney" includes pnvatc attorneys, the fedcra! public defender and staff anomcys
of the federal public defender organizalian.
IV. mISION OF REPRESENTATION
A. Circumstance.
I. Mandatow. Representation w b e provided for any financially eligible
person who:
a, is charged with a felony or with a Class A misdemeanor.
b. is a juvcnile alleged lo have commined an act ofjuvenile delinquency as defined in section
5031 oftille 18. Unitcd States Code;
c. is charged with a violation of probation, o r f a c a a change of a term or condition ofprobation
(unless the modification sought is favorable to the probationer and the government bas not
objected lo the proposed change);
d. is under mest, whcn such representation is required by law;
e. is entitled to appointment of counsel in parole proceedings;
f. is charged wilh a violation of supervised teleare or faces modification, reduction, or
enlargement of a condition, or enension or revocation of a term of supervised release;
g. is subject to a rncnlal condilion hearing under chapter 3 13 of lille 18, United States Code;,
h. is in custody as a material witness;
i. is seeking to set aside or vacate a deah scntence under sections 2254 or 2255 of title 28,
United States Code;
j. is entitled to appointment ofcounsel in verification of consent proceedings pursuant to a
m s f e r of an offender to or from the United States for the execution of a penal sentence under
section 4109 of tillc 18. United Slates Code;
k. is entilled to appointment of counsel under the Sixth Amendment to the Constitution; or
I. faces loss of liberty in a case and federal law requires the appoinlmcnl of counsd.
Discretionm. Whenever a judge or magistrate judge determines that the interests ofjutice so
requirc, representation may bc provided for any financially eligible person who:
a. is chargcd with apetty offense (Class B or C misdemeanor, or an infraction) for which a
sentence to confinement i s authorized;
b. is sceking relief, other than to set aside or vacate a death sentence under sections 2241,2254,
or 2255 of title 28, United Stales Code;
c. is charged with civil or criminal contempt who faces loss of liberty;
d. has been called as a w.tness before a grand jwy, a court, the Coogess, or a federal agency or
commission which has the power to compel Ienhony, and thcre is reason to believe, eithcr prior
to or during testimony, that the witness could be subject to a criminal prosecution, a civil or
criminal contempt proceeding, or face loss of libcrty;
e. is proposed by the United Slates anomey forprocessing under a pretrial diversion program;
f,is held for intrmational extadition under chapter 209 of title 18, United States Code.
g, has been informed in h t i n g by !he Uniled States AKomey h a t s u c h p m o n is the target of a
grand jury investigation.
Reprcsenlation mey also be h i s h e d for financially eligible persons in
mcillvy mansrs appropriate to the proceedings pursuant lo subsection (C) of the CIA
Counsel shall be provided to eligible persons as soon as feasible aft- they are taken into custody,
when !hey appcar beforc a magistrate judge or judge, when they are formally charged or notified
of charges if formal charges are sealed, or when a magistrate judge orjudge otherwise considers
appointment of counsel appropriate under the CIA, whichever occurs earliest.
C. pumber and Oualifications of Counsel.
1. More than one attorney may be appointed in any care determined by the c o w to be
extemely diflicult. In a capital case, the following applies:
a. Federal Ca~ita-. Pursuant to 1 8 U.S.C. 5 3005, a person charged with a
federal capital affenw is to the appointment of two attorneys, at least one of
whom shall be l e m e d in the law applicable to capital cases. Pursuant lo 21 U.S.C. 8
848(@(4), if necessary for adequate rcprerentation, more than two anorneys may be
appoinled lo represent a defendant in such a casc.
b. HabcasComus Procecdines. Pursuant to 21 U.S.C.4 848(qX4), a financially eligible
pcrson seeking to vacare or set aside a death sentence in proceedings under 28 U.S.C. 6
2254 or 2255 is enti(lcd to appoinunent of one or more qualified anorncys. Due to the
complcx, demanding, and protracted nature of death penalty proceedings, judicial officers
should consider appointing at l e a two counsel.
2. Qualif~cations. Qualifications for appointed counsel shall be determined by the court. In
capiul cases, the following also applies:
a. A~ooinlmenlof Counsel Prior to J u d ~ m g Pursuant10
. 21 U.S.C.5 848(q0(5), at !ear;t
one o f the anorneys appointed rnmt have been admined to practice in lhc court in which
the case will be prosecuted for not less than five years, and must have had not less ihan
three years experience in the actual lrial of felony prosecutions in that court. Pursuant lo
1 B U.S.C. 5 3005, at least one of tbe attorneys appointed must be knowledgeablc in the
law applicable to capital cases.
Pursuant to 18 U.S.C. 5 3005, in appointing counsel in federal capital prosecutions, L'IC
court shall consider the recommendation o f the federal public defender.
b. AD oinhn r. Pwsuant to 21 U.S.C. 5 848(q)(6), at l c a i ~
one of h e artomeys appointed must have becn admitted to practice in the court of appeals
for not Icss than five years, and must have had not less than three years experience in the
handling of appeals in felony caies in the court.
c. -m Waiver. Pursuant to 21 '.S.C. 5 848(@(7), the presiding
judicial officer, for good cause, may appoint an attorney who may not qualify under 21
U.S.C. 5 818(q)(5) or (c$(6), but who h u the background, knowledge, and experience
necessary to represent the defendant properly in a capiral case, giving due consideration to
the seriousness of the possible penalty and the unique and complex n a m e of the litigation,
D. Elieibilih for Represenfalion.
I . Fact-find in^. The determination o f eligibility for representation under the CIA is a judicial
function to be performed by a federal judge or magistrate judge after making appropriate inquiries
concerning thc penon's financial condition.
2. Ilijclosure o f Chanae in Elieibilihi, If, at any time after appointment counsel obtains
information that aclient is financially able to make payment, in whole or in part, for legal or other
wrvices in conneclion with his or her representation, and the s o m e ofihe attorney's i n f o m t i o n
is not protecled as a privileged communication, counsel shall advise the court.
V. FEDERAL PUBLIC DEFENDER ORGANIZATLN
].The Federal Public Defendcr Organization of the Emtern Disrric~ofNorth Carolin* previously
established in this distict pursuant to the provisions of the CJA, is hereby recognized 'as the
federal public defender organization for this distict.
2. The Federal Public Defender Organization shall be capable of providing legal services
throughout the district and shall maintain ofliccs for that purpose.
B. Supervision of Dcfender Oreaization. The federal public defender shall be responsibic for the
supervisionand managemenl of the federal public defcnder organization. Accordingly, thc federal
public defender shall be appointed in all cascs assigned to that organization for subsequent
assignment to staffanomeys at the discretion oflhc federal public defcnder.
C. Manaeemcnt of CIA-. The federal public defender shall be responsible for the
systematic dishbution of cases to and for the management of the CIA Panel subject to the
provisions ~f the Plan for ihc Composition, Adminishation, and Management of the Panel of
Private Anorncys under the Criminal Justice Acf found at Appendix I of this plan.
VI.PRIVATE ATTORNEYS
A. Establishment of CIA Panel.Thc existing, previously established panel of anomeys (CJA
panel) who are eligible and willing to bc appointed to provide representation under the CJA is
hereby rccognjzed.
B.Orpani2ation. The Plan for the Composition, Adminisuation, and Management ~ f t h Panel
e of
Plivate Attorneys under h e Climinal J u d Act is found at Appendix I of this plan.
C. Ratio of Appointments. &>ere practical and cost cffcclive, private anorneys from the CJA
Panel shall be appointed in a substantial proportion of rhe cascs in which the accused is
de!crmined to be financially eligible for represcn!aticn under Lhe CIA. "Subs~andal"shall usually
be d-fined as approximately 25% of the appointmcntr undcr the CIA annually throughout the
dismcr.
VI1. REPRESENTATION M STATE DEATH P E N A L P H A B E A S CORPUS PROCEEDINGS
UNDER 28 U.S.C. 4 2254
The court shall appoint the federal public defender with his consent or a qualified attorney
recommended by the federal public dcfcnder to represent financially eligible persons seeking
habeas corpus relief in state death penalty proceedings under section 2254 of title 28, United
Stales Code.
VIil. DUTlES OF APPOINTED COUNSEL
A. Standards. Tne services to be rendered a person represented by appainted counsel shall be
comrnensuralc with those rendered if counsel were privately employed by the person.
B. professional C o n d u c ~Attorneys appointed pursuant to thc CIA shall conform to the highest
standards of professional conduct, including but not limited to the provisions of the Nonh
Carolina Stale Bar Rules of Professional Conduct and the American Bar Association's Model
Rules of Professional Conduct. Such attorneys shall also conform to the highest standards of the
bar ofall othcr states, districts or territories of which they may bc members.
C. No Rcceipt of Other Pavmcnt. Appointed counsel may not require, request, or accept any
payment or promise o f payment or any other valuable considemtion for reprncntation under the
appointment, unless such payment is approved by order of the c o w .
D. Continuins Revresentation. Once counsel is appointed u n d n the CJA, counsel shall continue
the representation until the matter, including appeals or review by cedoran' (as governed by the
circuit CJA plan provisions concerning representation on appeal), is closed; until substitute
counsel has filed a notice of appearance; until an order has been entercd allowing or requiring the
person representsd to proceed prose; or unlil theappointment is terminated by c o r n order.
IX. DUTIES OF LAW ENFORCEMENT AND RELATED AGENCIES
A. Presentation o f Accused for Aowintment of Counsel. Federal law enforcement and
prosccutorial agencies, probation officers, and pretrial services officers i n this d i d c t , and those
acling on their behalf, shall promptly ask any person who is in custody, o r who otherwise may be
entitled to counsel under the CJA, whether hc or she is financially able to secure represenlation.
and shall, in such cases in which the person indicates that he or she is not able, arrange lo havc lk
person promptly presented before a magimate judge or judge of this c o w l for determination of
financial cligibilily and appointmcnlof counsel.
B. Natice of lndicbnent or Criminal Informa&n. Upon the rctum or unsealing of an indictment
the filing of a criminal information, or the filing of a petition to modily or revoke probation, thc
United Slates attorney or the probation officer, as appropriate. immediately shall mail or
otherwise deliver a copy o f the documcnt to appointed counsel, or to the defendant if he or she is
without counsel, at the address s h o w on defendant's bond papers or to the jail in which thc
defendant is incarcerated.
A. b s . Standard forms, periaining lo the CIA and approved by the Judicial Conference of the
United Stales or its Committee on Defender Services md prescribed and dimibutcd by the
Director of the Adminismtive Officeof the United Slates Courtr, shall be used, where applicable,
inall proceedings under t h i s Plan.
B. h. Claims for compensation ofprivate anomeys providing representation under the CJA
shall be submined on the appropriate CIA form to the Oftice of the Federal Public Defmder That
aflice shall review the claim fonn for rnathernadcal and technical accuracy and for conformity
with the CJA Guidelines, and, if concct, shall forward the claim form for the consideration of the
appropriate judge or magistate judge.
C. Su~enession.This Plan supersedes all prior Criminal Justice Act Plans of this court.
XI EFFECTIVE DATE.
This Plan shall become effective when approved by Lhe Judicial Council ofthe Circuit.
APPROVED BY THE JUDICIAL COUNCIL OF THE CIRCUIT ON July 10, 2002
(See Judicial Council Order 165 Copy ~ r t a c h e d )
J.HARVIE WILKINSON I11
CHIEF
-~ JUDGE
COURT OF APPEALS
Appendix I
PLAN FOR THE
CORIPOSITION, A D h ~ I S T R 4 T I O NAND MANAGEMENT
OF THE PANEL OF PRIVATE A'ITORNEYS
UNDER THE CRlhiINAL JUSTICE ACT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
I . COMPOSITION OFPANEL O F PRIVATE ATTOFXEYS
1. w. The Court shall establish a panel ofprivate anomeys ("CJA Paqe1'3 who are eligible
and willing lo be appointed to provide representalianunder the Criminal Justice AcL The Couii shall
approve anomcysuho have applied fornc.nbcrrkjp on the p a c l aRer receiving recommcndauons
?om i c C!A Pancl Ccmm~nrc,cnabl~shedpwsulntto paragraph B. of L5.s Plan. Members ofthe
CIA Panel shall serve at the pleasure ofthe C o w ,
2. &. The panel shall be large enough lo provide a sufficient numberofexpericnccd anarniys to
handle the CIA caseload, yet small enough so that panel members will receive an adequate number
~fappointmeztrtc malntnin Lheirprofic:er.cy in fedcralcnmind defense work,and thereby provide
-.
3h~en oual:n, ofre~rcxn!alior: The CJA Pmcl Cumm;ucc shall ~enodlcallvrenew i h c s ~ r eof 'he
CIA Pmel and make recornmendations to the Court as lo the necesslry of increasmg, lirniling or
decreasing the size of the panel
3. m, Attorneys who serve on the CIA Panel must be inembers in good standing of the
federal barofthis dishct, and havedemonsmtedexpcriencein, and knowledge of,the Federal Rules
of Criminal Procedure, the Federal Rules of Evidence, and the Sentencing Guidelines. Also,
anomeys shall have al least two yean experience in criminal defense representation. The Wo years
experience may be obtained by serving as a staff artomey with a federal defender organization, 8s
an assistanlV.S. Anomcy, as a law clerk fora federal dis~ctorcircuitjudge,oras aprivateanomey
whose practice involves substantial criminal defense work.
Subsection @)of h e Act provides, in part, that:
Counsel furnishing represenbtion under ihe plan shall be selected from a panel of
anomeys designated or approved by the cow, or from a bar association, legal aid
agency, or defender organization fumishing representation pursuant to the plan.
However, whenthe dirlrictjudgeprcridingoverthe case, orb chiefjudge ifadisln'ctjudge
has not yet been assigned to the case, determines that the appointment of an attorney, who is not a
.
member of the CIA D ~ J I.c ~is. in the interest of justice.. -iudicial economy or continuity of
representation, or there is some other compelling cinumstance warranting his or her appointment,
the anorney may be admined to the CIA panel pro hoc vice and appointed to represent the CJA
defendant. Consideration for preserving the integrity of the panel selection process SuggeN
-- that
such appoinfments should be made n n l i i n exceitio"al circ&stances. ~ u r z h i r the
, anorney, who
may or may not mainlain an ofice in the dlslrict, should passcss such qualities as would qual~fyhim
or her for admissian to the district's CJA panel in the ordinary course of panel seleclion.
4. Eoual O~ponuniry.All qualified anomeys shall be encouraged to participate in the furnishing of
rcprcsentation in CJA cases, without regard to race, color, religion, sex, age, national origin or
disabling condition.
5. -. Members serve an indefinite tern. However, a member may be removed from the CIA
Panel by the Court.
6. Removal from Panel. A panel member may be removed by the Court without prior notice. Also,
the CIA Panel Cornminee shall recommend to Lhe Court the removal of any member who fails lo
pmvide adequate rcpresenration, wha has cngaged in illegal activities, or ethical violations, or fails
lo anend adequate continuing legal education courses on criminal defense.
7. Aoolication. Application forns for membership on the CJA Panel shall be made available to
anomeys requening them from the Office of the Federal Public Defendn. Completed applicbtions
shall be rubmined to !he Federal Public Defender for review. The Federal Public Defender will
forward h e applicarions lo the CJA Panel Comminec for review and recommendation. Applications
will h e n be sent to the Chief Judge wilh recornmcndatioos as to whether the applicant should b e
placed on the regular panel, training panel or neither.
8. Continuine Leeal Educa~ion.As an annual requirement for continued membership on the CJA
Panel, all panel anomeys will be required to attend at least one federal criminal practice program
conducted by the Federal Public Defender, unless excused in writing by the Chief ludgc of lhe
distnct. The Fedeml Public Dcfcndershall schedule and conduct fedeml criminal practice programs
for panel slorr.c)s at l c u t ylncally. The Federa! Public Defender shdl seek approvi from 7hc
Vo.C ~ ~ o l i n aStatc Bar Board o f c o ~ t i n u i n gLegal Education for thcsc semillars CLE crcd:t will
.- .
he oIlcred on those D r o u m s aonroved
r - -
bb thc B o d of Continuinc Leeal Education. 'fie FcdcraI
Publ c Defender may approve other continuing legal education in the areaof fcderal criminal law
as a subslihlte for a~tendanceat those senunan conducted by h e Federal Public Defender. Failure
ofapancl anomey to meettheannual requirement ofanending a! least one federal criminal practice
program conducred by the Federal Publ~cDefender or an approved substitute will result in removal
from &c panel.
8.CJA PANEL C O M M l m d
1. Membership. A CIA Panel Committee shall be cs~ablishedby the Court. The Cornminee shall
consin of the chiefjudge, one magistrate judge, !he C I A Panel Representative for the disbict. the
federal public defender, and thc clerk of court. The Committee shall be chaired by the chiefjudge.
2. &&. The C o m i n e e sha!l meet at least oncea year lo consider applications for membership,
size of Lhe panel, twining rcquiremenrs, and any other CJA Panel issues presented to the Camminee
by any member. The Committee shall also review the operalionand adminisUation ofthe panel over
Ihc preceding year, and recommend to the Court any changes deemed necessary or appropriate by
rhe Commineeregarding the appointment process and panel managemcm. The Comminee shall also
inquire annually as to the cominued availability and willingness of each panel member to accept
appointments.
The CJA Training Panel consists of anomeys who do not have the experience required for
membership on the CJ.4 Panel. Training Panel members may assist members of the CJA Panel in
a "second chair" capacity. Training Panel members are not eligible to receive appoinments
independently, and shall not be eligible to receive compensation for their services in a s s i s h g CJA
Panel members. Prior service on the CJA Training Panel is not arequirement for mcmbership on the
CJA Panel, nor will senice on the Training Panel guarantee admission of an anomey to h e CJA
Panel. The requirements for members of the Training Panel to be transferred to the regular CJA
Panel may include but are not limited to the fallowing: the Training Panel member must ancnd a
sentencing guidelines seminarand afederal criminal prac:iceseminarapproved by the F e d e d Public
Defender and obtain a wrinen recommendation from a member of h e CJA Panel who has acted in
the "first chair" capacity on cases where the mining panel membcr has aeted a s "second chair". All
requests for such transfers to the CJA Pancl should be sent to the Federal Public Defender Office.
The requests will be presenled to the CJA Panel Comminee and are subject to the approval of the
Chief Judge. All requests for transfers to h e CJA Panel must be made within 24 months o f h e date
Lhe Training Panel member is appointed to the Training Panel. After 24 months, ifthe anomey has
not completed the necessary raining to move to the regular CJA Panel, the attorney's name will be
removed without funher notice from theTrain~ngPanelrosler. Attomeysmay rcapply toihe CJA
Panel. Any requests for extension of the training period must be made in writing to the Federal
Public Defender prior to the expiration ofihe 24- month period and a e subject to the Federal Public
Defender's approval.
11. SELECTION FOR APPOINTMENT
The Federal Public Defender shall maintain a c w e n t list of all anorneys included on the CIA
Panel, i+-i*ilh current office addresses and telephone numbers. The Federal Public Defender shall
furnish a copy oflhis list to each judge and magistratejudge. The Federal Public Defender shall
also maintain a public record of assignments to private counsel, and, when appropriate, statistical
data reflecting the proralion ofappointments between anomeys from the Federal Public Defender
officc and private anomeys, according to the formula desm.kd in the CJA Plan for h e District.
B. METHOD OF SELECTION
AppOintmenlsfrom thc list of privale anomeys usually *ill be made on a relational basis. Subject
to the Court's discretion or upon recommendation of the Federal Public Defender, exceptions may
be made in the following instances: the n a m e and complexity of the case, an anorney's experience,
and geographical considerations ?he goal oflhis procedure is to have a balanced distribution of
appointments and. . compensation
. among the members of the CJA Pancl, and quality rcpresentatioo
B. METHOD OF SELECTION
Appointments from the list ofprivate anomeysusudly nil1 be made on a rotational basis. Subject
to ihe Cam's discretion or upon recommendation of the Fedcral Public Defender, exceptions may
be made in the following instances: the narurc and complexiiy ofthe casc, an anomey's experience,
and geographical considerarions. The goal oflhis procedure is to have a balanced di:tribution of
appoinments and compensation among the members of the CJA Panel, and quali* rcprcsentation
for each CIA defmdanr.
Upon the determination of aneed forthe appoinbnent of counse1,thc judge ormagisbarcjudgeshall
appoint the Federal Public Defender in each case. The Federal Public Defender will determine
whelher representation will be provided by the Federal Public Defender or a member of he CJA
Panel.
In the evcnt of an emergency, i.e., weekends, holidays, o r o h e r non-working hours of the Federal
Public Defender's ofice, the presidingjudgeor magisbatejudge may appointany anorney fiomthe
list. lnsuch cascs,thc appointingjudge ormagistratejudge shall notify the Federal Public Defender
as to rhe name of the anorney appointed and the date of the appointment.
C h m s for compensation shall be submined to the Oficc of h e Fcderal Public Defender on a form
and in the manner designated by the Federal Public Defender. Claims shall be submined within
fortyfive days of the disposition ofthe casc or conclusjon of lhd representation. 7% Fcderal Public
Defender shall review the claim form for mathematicai and technical accuracy, and For conformity
wih the Guidelines for the Admi~stIationof lhc Criminal Justice Act, (Volwno VII. C&&Ltq
Judicim Policies and Procedures). The Federal Public Defender also shall review the claim for
reasonablencss. If any cnuies appear to be unreasonable the Federal Public Defender may request
further explanation or substantiation of h e claim from the CJA Panel anorney. The Federal Public
Defender shall fornard the claim form, along uith comments regarding the reasonableness of the
claim, for the consideration and action of the presiding judge or magistate judge.
